Why Is A Will Is Necessary?
Most people especially families do NOT have a will and it is with great urgency that you read this post. Essentially I want to cover the following topics:
- What is a Will?
- Why Is A Will Necessary?
- Who Needs a Will?
- How To Go About Getting a Will?
I am really hoping that you are reading this article because you already have a Will and understand how important it is to prevent the government from ripping you off and potentially harming your loved ones, close friends, colleagues or causes that you believe in.
Before I go into more detail regarding the above, let me explain what a Will is first of all.
This is why I am writing this article because I believe Wills and trusts or Estate Planning is not a high priority mainly due to lack of education. We live in a society where everything is on a need to know basis (even at the height of the information age). At the end of the day, if you don’t know what to do, you don’t know what to do!
A Will is a legal document, according to Wikipedia here’s the definition:
A will or testament is a legal document by which a person, the testator, expresses his or her wishes as to how his or her property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.
I know death sounds like a really morbid topic of discussion whichever day of the week you are reading this, however, there are two things which are certain in life.
firstly, we will all die.. someday.
Secondly, taxes are certain, even in death!
So this is a topic that needs to be discussed!
The amount of families that have been devastated due to a sudden death of the main Earner of the family or fail to plan in the event of a terminal illness and so the family again suffers. What about those who have children from a previous and a current relationship… no will just spells out DRAMA and STRESS!
Giving clear and concise instructions without ambiguity or confusion and with simplicity of ones wishes and goals on how to distribute their wealth, is a very sensible and prudent action to take.
Giv ’em Your Instructions and Orders – Administrators and Executors
So you are probably wondering…who actually carries out your instructions if one is dead (I did mention this slightly earlier)? Great question!
It needs to be someone you trust and who knows you well. I would also say it’s someone who is thick skinned and has the respect of your family members… this could be an older sibling (brother/ sister) or a pastor, or some influential person within the family. They are REQUIRED by law, in fact it is their duty and office, to administrate and carry out your wishes and orders.
Why Is A Will Important?
If you are either:
- Married or in a long term relationship (cohabiting)
- own a property
- Have significant Saving and/or investments
- Own Assets of significant value
- Have children
- Divorced and/or re-married
- All the above
It is VITAL to have a will in place, it’s absolutely necessary
The necessity is because of the following…
The LAWS or RULES of INTESTACY
Effectively, if someone dies WITHOUT a will in place, it is known as dying Intestate. when this happens the deceased persons estate (all their property and possessions – all money, savings, legacies etc) is now in the control of our beloved Government!
I do not know about you, but the government has enough control over your family whilst they are alive (don’t get me started), so why would you give them ‘Carte Blanche’ control of yours and your families wealth when one dies? Seems asinine to me!
What Are The Intestacy rules?
I am not going to get into too much, what’s important is that you are aware that they exist and you know where to locate the information, right?
The rules vary according to where you live i.e. English rule same different to Scottish and Irish rules.. so get the appropriate legal advice.
A good guide can be found here
Basically (English version):
If you’re married, or in a civil partnership AND have children
If you have married, or are in a civil partnership and have children but haven’t written a will, your spouse will receive everything in your estate, including all personal possessions, up to the first £250,000.
Anything over that amount is split in half – the children over age 18 gets one half and the over remaining half will go to the spouse.
If you’re married, with NO children
If you’re married, and have no children, your spouse will receive all personal possessions and the proceeds of your estate.
If you’re unmarried person and HAVE children (Cohabiting)
Your children will receive the proceeds of your entire estate at age 18.
If you’re an unmarried person without children
If you die intestate with no spouse, no children, then your complete estate will go to your relatives (even the ones you do not like), in this order:
- Your parents.
- If your parents are deceased, your estate will go to your brothers and sisters.
- If you have no siblings, your estate will go to your grandparents.
- If your grandparents are deceased, your estate will go to uncles and aunts.
- If you have no living relatives and die intestate, your estate will go to the crown
Who Needs a Will?
Well, I guess I have already alluded to this above, but just for the sake of clarity, I will re-iterate here who needs a will….
- If you are a parent, and you love your children…
- if you are not married but living with someone in a mortgaged property
- if you ARE married and living in a mortgaged property
- If you have life insurance/ live cover
- have a business or multiple business
- if you have any form of asset that you want to give to someone you love upon death….
- Inheritance tax situations..
- Asset protection
- Estate Planning
- Speak to your solicitor for more options and scenarios…
Use of Trusts in your Wills
It’s important to highlight the importance of a Trust as they’re not the same as a will, but equally as important..
Effectively, if a Will is ‘Active’ upon the event of death, a trust is effective or active whilst ‘alive’. there are public trusts and there are private trusts. A solicitor, mostly, can understand a public trust, however, a private trust is far more powerful and stays outside the scrutiny of the government. By default a trust must abide by the laws of the land else it is invalid.
As the context of this text is pertaining to wills, i will stick to the public side of trusts…
A trust is, in my opinion, the most powerful relationship known to man! And this is the reason why they are exclusively and predominantly used by the rich and wealthy.
Your Legal Estate
Everyone who owns an asset in their name is known as the Legal Owner, and by default the government will hold you responsible for everything, as long as you are recognized or are presumed to be the legal owner by default.
By using a trust, you get to correct the relationships that need to be corrected and also puts you in complete control with absolute privacy!
So, using a trust and enclosing this within a Will helps with your asset protection and Estate management needs, especially in the world of Inheritance tax planning.
The secret to wealth is to own nothing and controls everything – David
A trust consists of three relationships or roles:
- A Settlor – the one who establishes or creates a trust
- A Beneficiary – the one who benefits from the trust
- the Trustee – the one whose responsibility and office and is compelled to carry out the wishes of the Settlor on behalf of the Beneficiary.
- The res or property – this is the property protected by Trust, administrated by the Trustee on benefit of the beneficiary.
Each role (Settlor, Trustee, beneficiary) are distinctly different and the trust is established or is in place upon the Trustee receiving the property in trust.
The Trustee has LEGAL title of the property, The beneficiary has Possessary or usage rights of the Property (also known as Possessory Title). The Settlor has FULL and Complete title prior to transferring part if his title to the Trustee and the other half to the beneficiary.
From this, the settlor will declare his orders/ instructions of what and how he wants the property looked after, eliminating any ambiguity for the Trustee to manage.
An example of why a trust is so powerful, can be explained briefly as follows:
A father owns a house with equity of £500,000. The mortgage on the property is £100,000. The father has a daughter, called Jill. Jll is 16 years old. Jill has two younger siblings who have a different mother.
The father, in order to protect Jill, puts the equity in the house into trust, and assigns Jill’s Aunt as the Trustee to manage Jill’s Estate on her behalf. Effectively, Jill has benefit of the Equity of the house and the title of the house ounce the full mortgage has been paid. The Aunt, is the legal Owner on paper, but has a specific duty and office, according to Jill’s father’s instructions, to manage that property to Jill’s best interests.
With the trust in place,
- Jill’s dad is no longer the Legal Owner of the Equitable Portion of the home, so he effectively has NO assets (great for inheritance tax planning) as he no longer has a legal estate, That has been confered to Jill (beneficial Owner) and Jill’s Aunt (legal Owner – trustee)
- Jill is protected as her Aunt is looking after the Equity on behalf of Jill
AS YOU CAN HOPEFULLY SEE, Jill’s dad now has control but no ownership. If he wanted to, he could have made himself a joint beneficiary.
The key to the above is Time and planning… If there was an ulterior motive beside benefiting Jill, then this could be deemed fraudulent, and only the use of time could interpret that.
Again, I am not a Solicitor, so the above is for illustration purposes only… real tax and estate planning requires a tax expert! But hopefully you can see how with education and planning can really benefit from this knowledge
I am trusting this article has in some way opened your eyes regarding your finances and possibly compel you to investigate your personal circumstances and make sure your family are protected financially. It’s important to get professional advice and help regarding your finances because everyone’s situation is different.
Please leave a comment below – let me know how valuable and helpful this article has been.
To your success.